Courting trouble at Club Judge

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Australia's system for selecting judges is secretive,
cliquish and overdue for reform, writes Nicola Roxon.

As someone who has long argued that we need more women on the
High Court bench, I welcome the announcement that Justice Susan
Crennan of the Federal Court will fill the looming vacancy. The
absence of any women on the High Court bench has been a
longstanding embarrassment and an insult to the many female judges
and lawyers who are clearly up to the job.

Crennan's appointment shows that there is no trade-off between
gender and merit. She is a judge with an outstanding reputation as
a barrister, a long record of public service and a commitment to
the legal profession. She is well known for her corporate work, her
time as a commissioner for human rights, as a board member of the
Victorian Legal Aid Commission and as president of the Bar
Association.

But the appointment of a new judge, even a worthy appointment,
should give us pause to think about our processes for making these
important decisions. We saw this process in action this week. There
is a round of secret consultations with state governments and
within the legal profession, a meeting of cabinet, a short news
conference by the Attorney-General and, presto, a new judge for our
highest court.

If we look across the Pacific, we see a process for judicial
selection that could not be more different.

The United States is looking for replacements for Justice Sandra
Day O'Connor and Chief Justice William Rehnquist. In that process,
nomination by the President is simply the first step. The
candidates must then go through a gruelling process of Senate
confirmation.

Spare a thought for the present nominee, John Roberts, whose
every utterance is being scrutinised to divine his true views on
matters from abortion to intellectual property to state-federal
relations. Meanwhile, investigative journalists and opposition
researchers will be foraging for any unsavoury morsel in his
private life.

When we look at the politicised nature of judicial appointments
in the United States, there is often a temptation among Australians
to feel smug superiority.

Not for us a system of selection by public humiliation, we might
think, as we watch judicial candidates squirm in Senate
confirmation hearings.

But we should not be so smug. While our appointment process does
not have the same problems as that of the United States, we also
miss out on some of the benefits. In a sense we suffer from a
problem at the opposite extreme: where they have too much scrutiny,
we have too much secrecy.

Unfortunately our opaque process has a clubby feeling to it. It
generates a sense that selection to our most important bench is
based more on who you know than any objective criteria.

This raises several concerns. While we have been lucky to get
excellent judges, are we missing out on other outstanding
candidates not within the circle of influence of the serving
Attorney-General? Are we reducing the breadth of life experience
and perspectives on the court, risking the allegation that we are
producing judges by cookie-cutter?

These concerns are reinforced when you consider that we have
gone nearly three years with an all-male bench and we have never
have had a South Australian or Tasmanian High Court judge.

These gender and geographical biases cannot be explained away by
merit. Australia has 33 female superior courts judges, serving in
the Federal Court or in state or territory courts. This is already
a sizeable pool of talent before you add the number of excellent
women barristers, solicitors and legal academics who could also be
considered.

Similarly, South Australia and Tasmania have healthy legal
professions and judiciaries, but none of their members has ever
been selected for the High Court. Is it more likely that in 102
years they have not produced a lawyer good enough, or simply that
their talented lawyers have not been well known among the legal
powerbrokers in the big states?

In appointing Crennan, the Government has addressed an existing
imbalance, but it has not solved the core problem: the closed-door
selection process. Recent reports suggest the Attorney-General is
not even open-minded about the issue.

We need a national discussion about improving the selection
process for judges. Pointing to America in horror is not a
sufficient reason to cling to the status quo. There are plenty of
models that would provide more transparency and merit protection
without the intense, and often unfair, scrutiny that occurs in the
United States.

Indeed, several Westminster countries have already moved in this
direction, including Britain, which earlier this year created an
independent Judicial Appointments Commission. This new body will
assess nominees against quite specific criteria and then make
recommendations to the Government on appointments. The Government
has only limited options to reject these recommendations.

We can and should look at the flaws of the US system as a
warning that a more open and public process brings its own
problems. But it is intellectually lazy to pretend that our only
choice is between excessive scrutiny or excessive secrecy. There
are many alternatives in between and it is time that Australia
started to consider them.

This week we were again lucky to get a good selection despite
our flawed process. But it is only a matter of time before our luck
runs out.

Nicola Roxon is the Labor MHR for Gellibrand and shadow
attorney-general.